1. I take this opportunity of making one last attempt to clear a confusion of thought which prevails generally throughout the mofussil, and even, I am afraid, in higher places. This case affords a good illustration of what I mean. For, on the facts, it is quite clear that the accused must be guilty either of culpable homicide not amounting to murder or of simple hurt. But, as so constantly happens, the Sessions Judge first holds that the accused is not guilty of culpable homicide not amounting to murder, because she did not intend to cause death and the injury which she did intend to cause was in his opinion not likely in the ordinary course to cause death. So far so good But he immediately proceeds to add that since the accused inflicted the injury with violence and tenacity; she must be guilty of grievous hurt and convicts and sentences her accordingly.
2. A very little scrutiny of the three sections dealing with hurt, grievous hurt and culpable homicide not amounting to murder will show that there is no case in which death is caused and is the result under normal conditions of the injury intended to be inflicted which can possibly be a case of grievous hurt It is to be observed that the phrases suchas hurt which endangers life in the grievous hurt section, and hurt which is likely to cause death in the section of culpable homicide hot amounting to murder must be applied with reference to normal conditions, and it then becomes obvious that any hurt Which endangers human life must also be likely to cause death. I do not think that any case, however farfetched, could be put to the contrary. But where death is caused as the result of an injury which is not intended to cause death and was not in normal conditions likely to cause death or, to I use the other phrase, which in normal conditions did not endanger life, it becomes blear that the offence can neither be grievous hurt nor culpable homicide not amounting to i murder. For it must then be a case of simple hurt. There is a strong tendency, which I have observed during more than thirty years' experience of the administration of the Criminal law in this country, to convict very loosely of grievous hurt where the Court rather shrinks from finding the accused persons guilty of what is, generally regarded to be the more serious offence of culpable homicide not amounting to murder. Leaving aside for a moment the special forms of grievous hurt which lead up to the last clause of the definition, where any hurt is inflicted which endangers human life and does not fall within the previous special categories, the slightest analysis will show that it is only grievous hurt if death is not caused, and wherever death is caused it immediately becomes culpable homicide not amounting to murder. The sections are clearly intended to provide for like cases of hurt ending differently and it is, I believe, a universally true view that in every case of the kind which, where death is not caused, would be grievous hurt, under that general description where death is caused, it must always without exception be culpable homicide not amounting to murder or murder. As to the particular definitions of grievous hurt which precede, they may of course be invoked in special cases where death has been caused, although there was no intention to cause death or any in jury likely, in the ordinary course of nature, to cause death or endanger human life. But I should say that hardly any case of that kind could be given where death was really the result of any of the particular forms of injury enumerated in the Section under normal conditions where the Court would not err in calling the offence grievous hurt rather than culpable homicide not amounting to murder. To give an illustration of what I mean, suppose in a scuffle one man breaks another's little finger and then gives him a blow on the chest with his fist and it turns out that the injured man was in a diseased state of health suffering from an enlarged spleen, so that the blow caused his death This would, of course, under any general rule be clearly, a case of simple hurt, bat owing to the fracture of the little linger which had nothing to do with the death he might be convicted in such a case of grievous hurt It is only where death is attributable to an injury which the offender did not know would endanger life or would be likely to cause death and which in normal conditions would not do so notwithstanding death being caused, the offence will certainly not be culpable homicide not amounting to murder, but simple hurt, and every such case depends upon the existence of abnormal conditions unknown to the person who inflicts the injury. The commonest of all such cases, and one unhappily of very frequent occurrence in this country, is death caused by a very ordinary kick or blow owing to the person injured suffering unknown to his assailant from an enlarged spleen In this Case the actual facts proved do not in my opinion warrant us in holding that the accused appellant intended to inflict an injury which would in normal, circumstances endanger human life or which she knew to be likely in the ordinary course of nature to cause death. That being so, I have no hesitation in saying that the Sessions Judge was wrong in having convicted her under Section 325 and the conviction on the View he took ought to have been under Section 304. Here the facts are that in a sudden quarrel with the, deceased man the accused woman seized him by the testicles and squeezed them with considerable force and for a considerable time. The evidence is not as clear as could be wished, as to what took place immediately before she thus assaulted the deceased or who was the aggressor. But the medical evidence satisfies me that the injury actually thus inflicted by the accused upon the deceased would not in normal conditions have endangered his life. He was, however, unfortunately in a very unsound bodily condition and he never recovered from the shock, of the pain. Such being the facts found and nothing being disclosed, in my judgment, to prove the plea put forward on behalf of the accused appellant that what she did she did in the exercise of the right of private selfed fence, I think that this is really a case of simple hurt. For let us suppose the deceased had not died of the shock, it is quite certain that in an hour or two he would have recovered altogether from the attack made upon him by this woman, and suppose he had then filed a Criminal information against her, can it be supposed that she could at the most have been convicted of anything more than simple hurt In these circumstances, then, I am clearly of opinion that the conviction of grievous hurt is wrong and cannot be sustained.
3. I think that the facts prove that the accused was guilty of the offence of hurt, and as she appears to have behaved with very unusual ferocity and cruelty, I think it a proper case for the infliction of the maximum sentence. In this 1 believe my learned brother agrees, and we have, therefore, decided that we ought to alter the conviction from one of grievous hurt to one of simple hurt and the sentence from four years rigorous imprisonment to one of one year's rigorous. imprisonment, and we so order.
4. On the facts of this case I agree with the conclusion arrived at by my learned brother.
5. The learned Additional Sessions Judge Was not satisfied that the accused intended to kill the deceased or knew that she was likely to do so. But he held that the accused intended or knew herself to be likely to cause grievous hurt. The learned Judge has not mentioned the particular nature of the grievous hurt which, according to him, the accused intended to cause. Probably the Judge meant the hurt which would endanger life under Clause 8 of Section 320 of the Indian Penal Code.
6. The medical evidence in the case suggests the inference that the death was due to the abnormal and weak condition of the deceased. I am satisfied the injury caused by the accused was neither such as was likely to cause death nor such as would endanger life under ordinary, conditions, It is also clear that the hurt in question cannot properly fall under any other clause of Section 320 of the Indian Penal Code
7. I do not desire to enunciate any general proposition as to whether in a case, where death has resulted from the injury caused to the deceased, there is any real difference between the injury which is likely to cause death within the meaning of the definition of culpable homicide and the hurt which endangers life within the meaning of the definition of grievous hurt. I only desire to point out that great care and caution are necessary in determining with reference to the evidence in each case, where death has resulted from the injury, whether there is any real difference between the injury indicated by one expression and that indicated by the other.
8. In my opinion it is not made out in this case that the death resulted from the injury. The proper and safe conclusion seems to me to be that; the accused caused hurt punishable under Section 323 of the Indian Penal Code.
9. The conviction and sentence should be altered as proposed by my learned brother.